>> is it legal trouble today conflicted with the book publishing? >> funny you say is that. he is going to try land i can comment on the legal issue but it certainly seems to me it is a case of targeting and harassment of someone who was very publicly against this administration and i think he will possibly be talking about that a little bit in the book when it comes up. the first of june and the book is called america. what would we have done without her? the point is america stood for liberty and freedom and opportunity as a sort of signing

for centuries. and no longer able to stand for what it always stood for for people around world zoo wants to come here and have an opportunity and the danger is according to nash we are losing sight of those fundamental values that made us a place everyone wanted to come to including the next one. >> a quick preview with marie breaux -- marji ross. you are watching the tv on c-span2. >> booktv is on facebook and twitter. like and follow us for book industry news. behind-the-scenes looks to interact with others for television programming. earlier this week, the new york times interview with former supreme court justice john paul stevens on his recently published book six amendments which outlines justice stevens's

thoughts on how the constitution should be amended. we tweeted in the associated press elizabeth warren's book a fighting chance. it was released on tuesday. the book recounts the senator's life and professional career, childhood in oklahoma to her years as a harvard law professor at her oyster -- current tenure in the u.s. senate. on our face book page we posted a behind-the-scenes photo from our interview program after words. pictured is the host talking with jeremy rifkin, author of the zero marginal society prior to the start of their interview. look for the program to air soon on booktv. follow us on twitter at booktv. like us on facebook, facebook.com/booktv to get more news about the world of publishing and what is happening on booktv. >> marie breaux talks about the history of authors write and argues copyright law will need to be revisited in the future. this event was part of the tennessee williams new orleans

literary festival held annually in the city. it is about an hour and 20 minutes. >> good morning, everyone. i have some power point slide so hopefully you will have something useful to look at. i find when we talk about law we don't give some people reprieve the audience starts hurting themselves. i am a practitioner. i am not a scholar. i am not a law professor. basically a good candidate for holding a workshop. because i do things. just like anybody, the person who tinkers in a workshop to build things we have to draw on the knowledge of structural engineers, we have to draw on

the knowledge of architects. when it comes time to put something together to build the building, build the whatever it is, you have to call on the people who do something. that is me, a practitioner. i have one message, as a practitioner i view the copyright act as a steam punk who law. something fills with rude goldberg's contraction and it turns out rubleburg was a cartoonist, sculptor, inventor, author, engineer. it might be fitting to call on his work. there was an article in the new york times in the travel section about cruises and they mentioned the steam punk's crews so the definition of steam punk has

pretty much fallen into common parlance but it is a genre of science fiction or speculative fiction, it involves anachronistic combinations and when i went looking for images to get us all on the same page about what is steam come, what image is in my mind when i say that it turns out a couple years ago these fellows dropped -- stressed the been steam punk styles and stand in front of the streetcar and it takes back to the turn of 19 food into the 20th century that sort of style which is illustrated on your left, that home movies of voyage to the moon was made famous, martin scorsese's film you go. i think it is a lovely as static

and as a copyright practitioner i often think about that because there's a contradiction, old technology doing modern things, taking a bullet shipped to the moon using steam to get into outer space. it is an obsession with technology and that is a big part of copyright law. it is also visions of alternate universe, works like the wild wild west and the work of contemporary director jos sweden. it seems to fit with me about that is the state of our copyright law, all fairness analog universe, the digital world we live in. the next thing we like to do. and get on this page about

intellectual property. and the intellectual property organizations, and the united states is a member. and intellectual property means creations of the mind, inventions, literary works, motion pictures as well as the kinds of properties we use to identify products. and industrial property, and trademarks industrial designs, geographic indicators of origin which are more problems around the world than in the united states because we haven't set up but legal regime for that but when you get certified line, those come with a sealed it tells you where they come from. that is industrial property.

the other big categories copyright. that covers artistic works, poems, plays, software, broadcasting and that is what we're going to talk about today. a couple of categories called extradefinition type of intellectual properties, gets its value for not being publicly known that the most famous example would be the formula for coca-cola and i also think of related rights, media rights, this would be the rights of publicity and privacy, those often come up in the context of working with intellectual property so they don't fall under this definition but there are areas of law that we need to be aware of.

when i say that copyright law is anachronistic, it is an alternate universe i want you to know i am not alone in my opinion. the register of copyrights, the register of copyrights is the head of the copyright office and recently testified before congress that the current copyright statute was drafted to address analog issues and bring the u.s. into harmony with international law. and decreed any hope that we could have an effective copyright act in the 21st century. one of the furnaces this describes the current copyright law which was passed in 1976 as a very good 1950s statute.

some whether it is me thinking steam punt or barbara ringer thinking about the 1950s the copyright act is not of our time. the workshop in four parts, the first part, we will call them chapters because this is a literary festival and our first chapter is we define the basics of copyright in the 21st century. this isn't going to be a complete tour in copyright apps. it takes a little longer than our time today to do that but we need to get grounded in what we mean by copyright's. we start with statutory definition. the matter of copyrights and it is a nice distinction definition, every single word in that definition is important.

copyright protection subsists in original works of authorship, a tangible medium of expression now known or later developed from which they can be perceived, reproduced or otherwise communicated. a pretty understandable set of words. the statute gives examples of literary works, musical works, dramatic works, choreography, the visual arts, sculptures, graphical works, motion pictures and sound recordings. it is important that you understand there are certain types of works that are extremely valuable but they don't qualify for copyright protections and that is copyrights', a crucial

distinction, copyright protect expressions of ideas. they do not protect the ideas. they don't protect stats, they don't protect methods, systems, concepts, principles, no matter how valuable that maybe that is not afforded copyright protection. we also did not grant copyright protection to works by the u.s. government and its employees. they are our civil servants and their work belongs to all of us. we don't protect useful articles. that comes up in the fashion world where because clothing is useful for obvious reasons, not protecting under the copyright act and designers get knocked off all the time. one of the many topics congress has been investigating, needing

to give some type of protection. the other thing that is important about this definition is there is no reference to formality. we use that word a couple times today. meaning that copyrights exist from the time the work is created. the time that work is fixed in a tangible medium. don't have to register, don't have to put any kind of marking on it, that says copyright 2014. it happens at the time of creation. that was one of the most dramatic changes about u.s. copyright law in 1976 and we will see why that is important later. next thing we will talk about is authorshould. the originality bar is pretty low. what is dr.ship? the author is the person who actually creates the work, takes

this idea depicting a dog under an oak tree and turns it into blue dogs. that is the author of the work. we also recognize two other categories of authorship under u.s. copyright law. what is called work for hire. the scope belongs to the employer. that is also a distinction between copyright law and patent law. the other imported type of authorship is contract to work for hire. the rule is the copyrights will be long to the hiring party if

there is an agreement, and you enumerate certain categories of work, work for hire rule applies to and we talk about that later because it is very important. and litigated issues, who was that author, and employment and work for hire is often critical. i got originality, what does it get you? copyrights are very hard for people to understand. copyrights cover a bundle of rights. is not something, when you own copyrights you own rights to do something or rights to prevent somebody else from doing something with the work.

those rights i defined by statute. when you own the copyright, you have the right to control the reproduction of copies of the work, you have the right to control the preparation of derivative works, a derivative work would be a translation, and abridgment, transformation of a short story into a script, transformation of a script to a motion picture. you have the right to control the distribution of copies of your work of the work, you have the right to control public performance. that is very important for playwrights because that is the licensing right that gives a playwright loyalty for actual performance of his work and you have the right to display the work in public, and i use the

word display in public to include the rights to play back the digital audio rights. we are not talking about music. fortunately today that has its own little tortured history. so you have a bundle of rights but those rights are not absolute. they are subject to quite a number of limitations. the statute itself sets out 16 different limitations and the most important of those limitations is called fair use. we wouldn't get very far in this world if we didn't have some right to use the intellectual property, creations of the minds of others. we would be sitting in caves somewhere. so what is fair use? use of a work for criticism, comment, news reporting,

teaching, scholarships, research. is not an infringement of copyright. that sounds noble except congress gave us more factors to consider in deciding whether or not particular use is fair. we look to the character of the use. is that profits or nonprofit? look at the nature of the work, how much work was taken and used, we look at the affect of one person's use on the economic benefits achieved by the owner of a copyright. the thing about lawyers is a few give them four factors it is a debate. everytime you think you are ok with fair use it is a debate. when i give this talk in a face-to-face group teaching the assumption is fair use provision

is pretty broad. i could put up any images that i want but because we are being videotaped for c-span this morning i had to be very careful about what images i put out that maybe that fair use debate just got more robust. any image you see up here is either public domain or under the creative commons and free to use for this purpose. we could all of what the big debate about whether it was okay. there are a number of other limitations on the rights of a copyright holder, we give rights and privileges to libraries, we give rights and privileges to nonprofit educational institutions. this isn't the place to go over all of them but you need to

understand that bundle of rights is not actually -- the rights are great but when you get to exercise them, obviously throughout the united states but as a result of treaties that our government has entered into, the copyrights are effectively international. that really sets them apart from other types of intellectual property, you have to go to foreign patent offices, if you have a trademark you go to foreign trademark office's but because of these treaties which say the basic idea is parity. the u.s. must afford foreign offers the same benefits it affords to its own citizens or its own presidents in copyrights and when we go abroad, our copyright has to be respected on the same terms as in other countries and effectively that

makes copyright's good internationally and greatly simplifies things. rights are good, world is good. how long do you get your copyright? the answer is a very long time. under our current law, the life of copyright is the life of the author for individuals, the life of the author plus 70 years. always looking at two sometimes three generations of ownership. for corporate works, works for higher, works by an employee, the rule is a selector of 120 years from the date of creation. if it is unpublished, 95 years if it is a published work. the how long of a copyright terms are lasting, when we first

enacted the copyright act in 1790, one of the very first acts of our first congress, it was a 14 year term. and how expensive this is, he looked at the copyrights for steamboat willie, the first mickey mouse cartoon and miraculously every time steamboat willie is about to fall into a public domain the copyright act is extended. we are not alone in the united states in protecting our cultural treasures. peter pan in the united kingdom, the copyright on peter pan is getting extended for the benefit

of the charitable institution, it is the great institution. we are not alone in looking out for our own and it is a question of international norms. the copyright initially will for a long time, the life of the author plus 50 years, 70 years, following international law. this all seems very logical, right? we have the author, a bundle of rights, the world, how long, it is a long time. something that i could explain relatively logically, why would i call fact steam pump? that is why we come to part ii of our presentation. we are going to look at what i see as a practitioner, the steam punk aspects of copyright law.

it is an analog -- here is our analog guy. this is technology, this is high-tech. it doesn't fit. let me give you some examples. publication. i told you a work for higher, term of a copyright depends on whether a book is published or unpublished. the act defines publication in physical terms, defined as the distribution of copies for photo records of a work to the public by sale or another transfer of ownership or by rental, lending, what happens with the stuff you put on the web? what happens with a journal that is normally published on the web? is it published or not

published? we have some guidance from the copyright office but we don't know. this is a very fundamental question about copyrights, published or unpublished. some of those limitations on the exclusive rights of authors apply only to published works so it is an important question but we are defining it in terms of making physical copies. that is an analog problem we deal with. sometimes i will spend more time than i should filling out a copyright application. to check the published or unpublished box? it should not be that difficult. another example of where our analog problems come in is with exceptions for libraries. almost as if the rules that are in this statute were passed in

1976. we had card catalogs. if you wanted to get something from an archive you had to go there or write them a letter. so everything is set up for physical copies but we live in a digital world. we don't go to the library, we don't use card catalogs and more. i wonder what happened to those cases. some of them were quite lovely. we give material to people in digital form. what do we do? why is this sort of steam punky? because under the limitations set out in congress, it may be okay for library to scan a work, attach it to an e-mail, send it to the requesting patron but it might be illegal to post it on

the web site. it is not contemplated within the fair use rights given to libraries and archives. if i can send it to you in digital form why can't i -- why can't i post it without engendering debate about fair use. and redheaded stepchildren of virtual property, i don't think we can debate software and computer code, we protect them against the same set of rules that apply to literary groups. databases are important. we don't have a way of protecting them because the database is a collection of facts. they become the redheaded stepchildren of copyright world. another sort of rude goldberg

contraption is we have these work for hire rules which apply to employees and people working on the work for hire rules that we live in a freelance world. we don't all go to work at desks like this that we did in the 1950s. work for hire rules, if you work for higher definition, really meant for another era. it defines work being specially commissioned including contributions to collective work, part of a motion picture, compilation, translations, indexes, answers to test but nothing about collaborating on software, nothing about that would really cover the vast number of consultants involved

in a large project. technology involves teams of people to make it happen and it is hard to show that into a definition that was meant to protect the making of physical film production. it just doesn't work. when it comes time to make sure that you have got all the rights to your work is a little bit like driving a steam powered space ship to be working with the kind of rules that we have. another problem with our current state of law is we are all infringers. we infringe all day, every day of our lives. there is a wonderful article and book followed by the name of john tarkanian called the fringe and nation. he goes through his typical day. he wakes up in the morning, checks his e-mail, replies, his

e-mail program attaches the prior e-mail. he is copying and sending that e-mail to somebody. he just violated the copy and distribution rights of the person who wrote the first female. if you copy content, paste it in an e-mail, print it out, use it, you are infringing. we will talk a little bit more about how sites like youtube get around that. it is we have this, we have this one set of, we have one set of laws but we absolutely live in an alternate universe where we violate those laws constantly. that is never a lawlessness is never a good situation. then we have my last and

favorite example. that involves what we call orphan works. orphan works are works that are subject to copyright but the copyright owner cannot be found. if i find a lovely article, i find a lovely image, i want to use it. i am not the author. maybe it is not going to be covered by fair use, clear fair use provision. how do i -- how do i get the right? i have to ask the author but maybe the author is no longer with us. copyrights last the life of the author plus 70 years. the author's name may have changed. the company may have gone out of business. they make these still in existence or the right to administrator may be there but they are not visible on the web.

it is quite a problem with finding work and finding usable materials and it is i think gotten to the point where congress has tried twice in the last five or six years to fix the problem. ..

>> you look at something else at te end, which is not as exciting. but that's the kind of impoverishment that is occurring because we have these orphan works, and we can't use them. so that is my take on, you know, i wanted you to know that we have the copyright law right now when you're tinkering in the workshop and working to accomplish something, you've got a very logical statute, but that statute doesn't really fit the kind of things that we're wildbuilding and -- building and making today. so how did we get here? and this was sort of like, this was a very interesting thing for me to do because, you know, like most people, you just use tools. you use what's available to you. and we don't contemplate where did those things come from, where did the concepts come from. and so i started looking at the copyright tool, where did this come from? and the first thing i want you

to know is that copyrights are a relatively recent idea. the first genuine copyright act that we have is something called the statute of anne, queen anne. it was a british statute. it was passed in 1710. tsa, you know, that's just a little over 300 years ago. that's not a lot. i mean, it looks like a lot to us. you know, i'm in my 50s. so, you know, i've charted this out, you know? it's not too bad for a law. the constitution is about, you know, isn't 300 years old, but it's a couple hundred years old too. all right, i can live with that. but i thought, you know, what happens if we compare the copyright statute to literary creation? just looking at literature, and, you know, in western literature, in the western canon, you know, we date that to homer. that's, 800 b.c. is almost 3,000

years ago, you know? so we had a lot of creation. you know, shakespeare wrote before copyright. certainly, all of the ancient romans and greeks wrote before copyrights. and truth be told, people were creating long before we even got around to having the technology, paper, to put together written literary works. and no one thought, you know, what is the first works of art that we can think of. the venusville -- [inaudible] is something 24,000 years ago. the caves of moscow are 17,000 years ago. anthropologists are finding pigment and other evidence that even our, you know, our nearest related defunct ancestors were

creating. and i think it's a very important thing to take away that, you know, we are familiar with this copyright regime. your parents had, lived in a copyrighted world. their parents lived in a copyrighted world, but it has not always been the case. and i take away from looking at a chart like this something that i think is very profound to, and that is i believe creation is part of the human condition. i think it is part of our humanity. i don't think it has anything to do with wherever there are copyrights or not. i believe if you are human, you are going to create. so, you know, we'll do this little, quick little tour. you know, ancient times, they were writing in sumeria. the tale of gilgamesh, it's boring, i don't understand it.

[laughter] you know? they had to chisel that story out of stone, and they still, you know, it was -- they were creating, you know? it was the first by eleven yum before anybody -- millennia before anybody can find any kind of a hint of a copyright dispute, and it involved two irish saints, saint columba copied the salter of saint finnion, and finnion objected. and the king of ireland said that columba the copier, had to give his copy of the salter back to finnion, and this was his reasoning: to every cow belongs its calf. so to every book belongs its copy. [laughter] and this was, this was about 500 a.d. and remember, i said the first copyright act is 1710, all right? so we've got a long time from this one dispute that historians

have been able to find before we have formal copyright legislation. and, in fact, people who know more than i do about the history of copyright law have said that at no time during our manuscript period did anyone assert an author's copyrights. that's a long time. that started to change with the last great, you know, one of the last historical, technological innovations, and that was the movable type printing press. that's guttenberg. it is the -- and, you know, the impact of guttenberg was enormous. and, you know, you always hear that i'm somebody who likes numbers, and, you know, if you can -- that's why i put together, you know, little charts and graphs, numbers. i see things like that.

it has been estimated that before guttenberg's press the number of books in europe numbered in the thousands. within 50 years, within 50 years the number of books in europe shot up to ten million. i mean, think about that revolution. from the thousands to the millions. it was transformative. and i think the age that we are living in now is just as transformative because, you know, it's very hard to get this number. and i wonder if it's an nsa secret. [laughter] but how many, you know, how many web pages are there? the last time i can get, google which indexes web pages and is one of the tools that we use, in 998 when they were -- 1998 when

they were a very young company, there was 26 million pages. the last time google estimated or made public its estimate of pages, there were one trillion unique web pages. unique url addresses. think about that. a trillion. that's like, you know, that's over 140 web addresses for every person on this planet. [laughter] that's amazing. so what happened, you know, we're in the historical section. what happened the last time we had a technological revolution like this? well, we had, you know, like we do now, we had a variety of responses to it. i mean, it was a big investment in technology to learn how to, to get a printing press, operate it, make things. and what came, you know, the people who owned the technology wanted privileges.

does this sound familiar to us? they, you know, if i bought the printing press and i, you know, set the type for -- [inaudible] i want the right to publish that book exclusively. because i put all this effort into it. and in many countries historically, it was -- that's where the rights over these books resided, with the printers. not the authors. this is the, you know, 15th and 16th century. it's with the printers. we have some inklings in this, i'll call it the early experimental period of printing. some inkling that authors ought to be involved. we have the jewish community in venice recognizing that the person who wrote, the cantor who had written music for services

ought to be in control of who makes copies so that his family could be provided for. and i think it was a period of ten years. so there's some experimentation. but mostly, mostly what is being protected is the printer. and i'll tell you why. and we're going to look at english history because we were, you know, that shaped so much of the law that we have today. this is an engraving from the victorian era of the first printing press to hit great britain, and that's william catsden demonstrating his press to william iv in 1477. and, you know, the unfortunate thing is that the printing press arrives in britain in the middle of the war of the roses. and in the middle of what eventually becomes an incredible amount of religious turmoil in britain.

and being a monarchy, the monarchy seized control of the press as a way to control information and its part of the exercise of power and privilege. and so the monarch controlled who had licenses, they were called privileges, who had the privilege of printing. and the printers are happy to go along with this idea because that protects them as the exclusive source of the laws. it protects them as the exclusive source of shakespeare's plays. it is a, it's an unholy little matrimony that takes place. and someone, you know, put the history together, and, you know, there was, you know, you get through the tudor era, you have phillip and mary come back as

successors to henry the viii. they are catholic, they license presses to print pro-catholic, pro-pope literature. the stewarts come in after they're tossed out. we have, you know, the romans are out, the protestants are back. we switch our privileges. we've got the puritans come in, you've got -- they take over. the pro-puritan press is in favor until the restoration, we're back with the royalists. and it goes back and forth. and what -- this is a man by the name of ray patterson, and he's really a tremendous copyright scholar. he says through all these vicissitudes, the stationers

themselves steadfastly remained what they had always been; imminently practical men, and they consistently protected their privileged monopoly. so what you have is a terrible, terrible situation of, you know, strangled information. and by the time we get to the 18th century, this is an image of john locke, you know, the situation is untenable. and there's, you know, we have the beginning of the enlightenment, and people are not happy with information not being freely available. tear not happy -- they're not happy, particularly john locke is not happy that he can only get a substandard copy of these works in translation, some of them ancient works that he was interested in. just because someone had a privileged monopoly. so he asked, you know, he was a big lobbyist for getting rid of the privileges.

and i should have put this on the slide. the privileges die in 1690. and we have an interregnum of about 20 years where we didn't know what the legal regime was. and be in 1710, so 20 years after privileges are abolished, we have the statute of anne. and i'm going to skip this. so, you know, we have -- what is the situation in the colonies? by this time, you know, america has been discovered. the statute of anne was not extended to the colonies, and, you know, after the revolution one of the things that, you know, we had -- we were founded by, certainly, a lot of people with agrarian interests, but we also had people like ben franklin, thomas jefferson. these are people interested in ideas. they were authors. they could have hung for the kinds of documents that they authored. so they were very interested in

this issue, and the constitution itself provides that congress shall have the power to promote the progress of science and industry and the useful arts by securing for limited times to authors and inventers the exclusive rights to their respective writings and discoveries. the first copyright act, like the first patent act, was passed in 1790. and the image that i use there is a very early coin. they didn't strike very many of them. it's a half penny, and the logo around it says "liberty: parent of science and industry." that was what our country -- this was a centrally important thing for us. the thing about our early copyright law is that it did involve formallies of registration. you had to register your copyright to get it. you had to put copyright notices on your work, and it was a very

short term, 14 years. and you would think that that would bring us into harmony, but we started having international problems. in the most famous, charles dickens. i forgot to mention something very important to you. those american copyrights were for americans only. so if you were a foreign author, your copyrights weren't good in the united states. well, dickens, dickens -- like many authors -- is a world treasure. he was a world treasure in his lifetime. and as soon as his works were out, they stuck them on the ships sailing, i think sailing, to the united states, and, you know, dickens had an official publisher here. that official publisher gave him royalties, but there were unofficial publishers of his works, and he didn't see any

royalties from that work with. dickens came to america twice. one of -- can on one of his trips he went to, he testified or he spoke to congress. he asked them to address this problem of american copyrights, and nothing happened because sort of like our internet service providers today, the printers of yesterday wanted their profits protected. and it worked both ways, okay? americans had trouble in britain. and be this is a tragic story of melville in britain. because of the uncertain status of american copyrights, copyrights of american authors in britain, one thing they did to tweak the system and improve their position was you would publish your book first in britain, then in america. so if you were the nation of

first publication, you might have better shot at getting copyrights. and poor old melville sent his, sent "moby dick" to be published first in britain. the british publisher didn't include the epilogue. so you read this book about everybody who dies at the end, okay? and if you don't have the epilogue, you don't know that ishmael survives. so people, you know, the reviews of melville were terrible. it was like this book doesn't make any sense, how could everybody die, but i am -- call me ishmael, it just doesn't make any sense. well, in addition to, you know, violating the copyrights of literary works, people like dickens, american newspapers would pick up british book reviews. so even though the american publisher published the whole "moby dick," including the

epilogue which explains everything sort of -- well, it certainly makes the book make sense. poor old melville was the summit of having these british -- subject of have these british reviews reprinted, and people of the time never found that book, okay? so this is, the international situation with copyrights was a disaster. so here comes onto the scene yet another one of our 19th century greats, this is victor hugo. it's not tenable that books, the copyrights to writings do not cross borders. ideas cross borders, authors cross borders, books cross borders, we have got to fix it. and there's something, the byrne convention was set up in 1886. and he was -- victor hugo was one of the major forces behind that international treaty. and it was basically what, the basic agreement of byrne -- and

this is overly simplistic, but it was whatever you do for your own, you do for the foreigners, okay? and we still live under that regime. in the united states, we tried, you know, we were tied to -- i keep mentioning formalities. we were tied to this notion that if you want copyrights, you have to register them. you have to put the copyright notice on them. you have to say your name and the year that your copyright. and we didn't want to give up that kind of formality because there was no formalities required under this berne convention. so we tried everything. we had pan-american copyright conventions, we did not join the berne convention until 1989, o.k.? so that's sort of -- i think that history of copyright is important when we come to the last section of my talk which is, you know, we need to talk about the future.

and the first thing is you might have guessed, is that it's time for a new law. this is not just marie breaux, you know, copyright lawyer in new orleans, louisiana, saying that we need a new copyright act. the register of copyrights act says we need a new copyright act. i think anybody who has any copyrights thinks we need a new copyright act. the register of copyrights is diplomatic. she told congress a year ago this month the law is certainly showing the strain of its age, right? and, you know, as people are agitating for a new copyright act, i think we're seeing a lot of in scholarship and information about copyrights and intellectual property in

general. i went to -- i graduated from law school in 1985. when i graduated from college, someone gave me a black's law dictionary as a graduation gift. there is not a definition of intellectual property in the fifth edition of black's law dictionary. it was such copyrights, i mean, intellectual property in general, patents are always important, but it was a little bit of a backwater of, you know, of american law or of law everywhere. so we're starting to look hard at this. and the scholarship, i have to tell you, if anything i say today makes you interested, start investigating these issues. because the scholarship is starting to be very stunning. we're kind of stuck in part because, you know, the people who have the biggest voice, we're kind of stuck and our

government is certainly stuck on the notion that intellectual property is important, and the rhetoric always given -- and i'm going to quote from a government web site -- ip protection is critical to fostering innovation. if you -- without it, businesses and individuals would not reap the full benefits of their inventions and would focus less on research and development. similarly, artists would not be fully compensated for their creations and cultural vitality would suffer as a result. i guess no shakespeare in the 21st century, huh? [laughter] so, you know, people are starting to test this hypothesis that if you don't give people, you know, the biggest, bad, longest -- bad, long copyright available, they won't create, they won't innovate. and, you know, it's a law -- this is a chart that was put

together by a professor from the university of illinois. he's in the law and economics type school of thought. but he said i, you know, let's look at the effect of copyrights. and one of the shocking and, i think, appalling things that is popping out of this research is that copyrights are killing books. and i think it has to do with rights clearances. it's not that people don't want to pay authors their royalties, but if it takes a long time to track down who owns the rights to a book published in 1985, and believe me, it does take time, and you may do a lot of research only to find out you can't find the person, you can't get those rights. you know, when books first come out, boom, a big pop be -- there's a big pop. the books are available. but as we go back in time, you're more likely to be able to find a book from 1880 than 1980.

and there's something wrong with that. maybe, you know, maybe some of our cherished ideas don't hold water. and people, you know, there's a professor attu lane who was -- at tulane who was also doing a similar type study. this piracy of music, the fact that we can easily download and copy music, is that stifling creativity? he says, no, and i think he's right. and i keep coming back to that chart. i think it is part of human nature to be creative. i don't think, you know, if humans were chiseling out this story of gilgamesh in ancient sumeria, no way we're going to sit down in front of computers and not use them.

okay? we are going to innovate. so, and this, i really am not doing justice to the amount of thought that is being put into, into what kinds of copyrights are available. because i don't want you to misunderstand what i'm saying. it's not that copyrights aren't important. it's not that authors shouldn't own, you know, have certain control over their works. i'm not, you know, i'm not an anarchist. but i do think we need to come up with a system that's a little, that works better for the type of age in which we live. so, you know, while we're waiting if the last copyright act took 20 years to negotiate, they started in the 50s and they got a statute written in 1976, you know, people, technology is just growing exponentially. we can't sit around figuring out what to do.

and, you know, very bright people have come up with some alternatives. and one of them is called the creative commons. can i see a show of hands, are people -- are y'all familiar with the creative commons? okay, we have got, you know, maybe 25, 30 be % of the audience. -- 30% of the audience. the creative commons is what makes the wikipedia poll possible. creative commons does not supplant copyrights. the authors have the rights that they have. but what it sets up is a licensing scheme. there are six flavors of creative commons licenses, and if you say i release this work under the creative commons, and you specify one of these six licenses, people know what they can do with that work. and the one at top is attribution, it is the most

liberal license. all you have to do is give credit to me, and we're good. you can use it, you can send it to somebody else, you can copy it, you can change it, you can even make money doing whatever you do with my work. but you just have to say it started with me, author. the second level or tier of license is called attribution share alike. you can change it, you can modify it, you can use it, you can share it. you've got to, you know, give me, the author, credit. but you also, when you make use of that work, you've got to license your work under the same terms that i've licensed mine. that's the license that is used in wikipedia. i mean, where would we be without that, okay? the next one down is attribution, called the attribution no derivatives

license. give with me credit. you can't modify my work, you can't make any derivative uses of my work. you can use my work commercially, you just can't change it. give me credit. that's another variation of the license. attribution noncommercial. give me credit, don't, you know, make any money off of using my work. attribution noncommercial share alike. you can use it, you can modify it, you just can't, you know, charge money for it, no commercial uses, and you have to let other people use your work the way i let you use mine. and the last license is the most restrictive license. it's attribution noncommercial/nonderivative. you've not to give me credit, you can't make any changes to my work, can't use it for commercial purposes, and that is

the most restrictive license. and when you release content, you know, some of the images in my slide, i could go to image finders in the internet, i could see am i authorized to use this work? can i, you know, is this -- has this been released under a creative commons license? i know what i can do with this. i can manipulate and change it. so, you know, that has been revolutionary. and maybe, you know, i wonder, somebody ought to get out a chart and see what happened to the number of web pages before and after we started having the creative commons license. the other thing that has also been revolutionary is something called open source publishing. and this is a particular concern for academics. you know, i do -- there is a lot

to get something ready for publication. i get why publishers deserve to get paid. but i also have trouble with the idea of locking knowledge behind pay walls. and especially, and i think the issue becomes marley acute -- particularly acute in the world of science where, you know, our tax money probably, you know, we certainly help educate the scientists, we certainly pay for a lot of the institutions where those scientists work, and our tax dollars probably provide a lot of grants to those scientists. and yet when they go to report their, the results of their research, it's behind, it's locked behind, you know, up in paid subscription services. that has been troublesome to a number of people. it cuts down on access to

knowledge. it certainly, you know, turns the constitutional idea of promoting science and the useful arts if we've got, if we're using copyrights to lock information and knowledge away. so, you know, not that long ago in 2002, i think, you know, a group of people got together and came up with the concept of open access publishing, that this would be the typical idea of scholars writing for other scholars to share information in peer reviewed, i mean, we're talking about these are not, you know, marie's garage blog, you know? or, you know, betty's, you know, biology bungo, you know? this is legitimate academic

publishing. and open source publication has also been revolutionary. and it is also -- it has also grown exponentially. and those of you who are scholars, i'm sure, are very familiar with it. and i think it's also very telling -- and this is something that just happened, you know, i want to say two weeks ago -- getty images, you know, this idea that, and this goes back to the notion of economic studies that we're doing about copyrights. the idea of maximizing enforcement and making access, using copyrights to make access more difficult isn't really working in our marketplace. and it's telling that earlier this month getty images changed its policies. if you wanted to use, you know, when you went to getty images, and they've got tens of millions of images.

they are a phenomenal resource. if you went there, you know, there was this nasty watermark and, you know, basically in the middle of the picture. you could see it. but if you wanted to use it, you had to license an image. and how much you had to pay depended on what size image you wanted, where you were going to use it, you know, how many dpis per inch. now you can, well, just this month -- and this is how rapidly things are changing -- is you can sign up with getty images, and you can take images out of that phenomenal collection of tens of millions of images, and you can reuse them. you don't get to reuse them for anything. there's a quid pro quo there, the quid quid pro quo is like te quid pro quo on youtube.

it is that you use an image from getty with an embedded program, an embedded viewer. and that viewer gives getty some control over the way that image is displayed by you. they can, you know, just like those nasty youtube advertisements that come up, that's the same kind of embedded player. so you can get access to this bank of information, but getty says we can make money, we won't -- or, you know, we're going to try to make money by controlling how it's displayed by you. not whether, you know, whether -- we're not going to exercise the copyrights to decide whether you get to display it. we're going to enter into a bargain with you that will control whether or not there's some, you know, ad revenue. you know, this is all very new,

and there's, you know, i don't want to say that this is, this doesn't have some dangers because whatever somebody lets you use for free they can take back. it's sort of like borrowing the lawnmower from your neighbor, okay? [laughter] but i think, i think it's telling that, you know, an outfit with access to an archive like that is saying, you know, we're going to make it easier, not harder for you to use our content. and that comes to my last slide which is not the steam punk image of "star trek," that poor orphan work that i couldn't clear. this is a public domain image of toothpaste. and my message here is that i don't think that we can put, you know, the toothpaste back in the tube, you know? we don't, you know, we don't want to go back to using card catalogs at the library.

we don't want to go back to having, you know, to use an outdated set of encyclopedias in the home. we like this digital era that we live in. it needs to be improved in many ways. you know, we've got to, you know, i would say that, you know, the present, the state of copyright law is a bit like, you know, a patient who's been involved the in a train wreck, you know? congress is looking at fixing little pieces of it, orphan works, libraries and archives, educational uses, do we need to set up kind of small claims court at the copyright office to deal with lower value infringements. you know, that's one of the things that we need to do, we need to treat the things that are bleeding right now. but we also, i think, need to look at a bigger picture of

health. and that means that health and well -- and that means the health and well being of authors. pause while it may not -- because while it may not be that their best strategy is to maximize enforcement, you know, we need people to create cop tent. we need -- content. we need authors. we need entrepreneurs. and we need a very robust public domain. we need to be able to access that, that information that is created out there, these creations of the minds. finish the, you know, i guess that's really the three interest groups that are interested in copyright; authors, entrepreneurs, you know, the 21st century of our printers, of the dueten berg -- guttenberg press printers and the public

domain. and, you know, when i look at the hearings that are being held in congress today, it's very easy for the authors, the songwriters, the photographers to find their voice in congress. if you are a successful entrepreneur, you know, google gets to talk to congress, mark zuckerberg can call up president obama, as he did earlier this month. they get heard. the voice that is hardest to get out into the general discourse is the voice of the public domain. i would like to see people from the humanities, anthropologists, historians, economists, scientists, biologists, people, you know, a very robust discussion about what copyrights mean for people and what they mean for us in our society.

i think we might need a new vocabulary. i don't like, i don't think the word "property" quite covers the interaction of rights and liberties and goals of the copyright act. and, you know, i think we have to be very careful about making, you know, making our intellectual property law too much about property.az i'm going to close with two thoughts. i think you may have read in the press about the lawsuit that was brought by the faulkner estate against woody allen for the movie "midnight in paris." owen wilson, in that movie, paraphrases a very famous passage, he says the past is not dead, not even past.

it's not even past. and woody allen was sued for copyright infringement based on the use of that snippet. i can see where the faulkner estate would have, would come up with the idea that they would be able to claim some kind of copyright infringement on the basis of that usage. little samplings of music have to be licensed. that's the regime. everything that appears in a motion picture, the pictures on the wall, you know, the product placement is not just about selling goods, it's also about making sure that you have the rights to publicly display everything you see up on the screen in the cinema. everything is licensed into movies. so i can see where they would have the idea that, you know, taking a snippet out of a faulkner book also ought to be licensed. fortunately, the judge -- at

least the first judge to hear the case, the district judge said, no, that was fair use by wood key allen. and -- woody allen. and i think that case illustrates, you know, that if we give two absolute -- too absolute control over literary rots to authors, it really amounts to censorship that's just as pernicious as those dark days in great britain where, you know, you were besiding who got to print books -- deciding who got to print books based on whether they supported the puritans or the roilists. -- royalists. and i think it's particularly appropriate to end on that note at the tennessee williams festival, because there is one thing about tennessee williams' work, and that is the notion of censoring language, i think, would have been anathema to him. this is a man who had such

facility with words. and it's not just the string of words that come out, it's like going to the theater and hearing poetry. but it's also how powerfully he can manipulate a single word. all i have to do is say "stella," and you know what i mean. all i have to do is say "mendacity," and you know what i mean. one word. so i think words are important, i think authors are important, i think copyrights are important, and i hope that other literary festivals will also start talking about this, because the issues are just vital to us all. and i thank you for your time. [applause] >> i think we have a few minutes for questions.

>> [inaudible] [laughter] >> good morning. i'll speak up. >> okay. >> do you think it's time that we begin to devise types of media -- divide types of media up so that we don't end up with copyright law written by the dinosaurs of the motion picture association of america and -- [inaudible] and also what do you think about e-books? which if i go buy a hard copy, it's mine. i lend it -- >> right. >> if i buy an e-book, i have -- [inaudible] >> right. >> to loan it to someone. short of giving them my kindle. >> right. the question is whether or not we should have, set up different rules based on the type of media, and what do i think about digital rights management. i think that one of the things that people, that scholars are writing about is whether or not

we need to set up different rules based on the type of work in question. i think that's vitally important. you know, and i think that's a helpful direction. because, you know, what works in a music marketplace, you know, and i'm talking about sampling, you know, sampling snippets of music. if's the way the music marketplace wants to operate, that's great. but maybe in a literary, cinematic storytelling marketplace we want to be able to say that the past is not dead. be and not or worry about getting a lawsuit. so i do, i think that is one of the, that is certainly one of the areas where scholars are looking very hard. the other thing that's telling about digital rights management is it's, you know, part of the story we didn't tell is how

powerful technologists, how powerful that entrepreneurs have about what happens in the field of intellectual property. you know, the libraries and archives are limping along under a 1950s/1976 version of fair use rights. but every time a satellite provider, cable company, you know, cable wasn't around in 1976 either. digital music distribution. when technologists need the law to be changed and updated and be refreshed, they go to congress, and for better or worse, you know, congress amends the statute. the copyright act, i think, has been amended 35 times since 1976. and not once, you know, have we really updated what rules apply to educational institutions, and

this there's been some legislation there, but certainly poor libraries are just dying under this very archaic system. one of the things that technologists got was something called the digital millennium copyright act. it was passed in 1998 or '99. it's about 15 years old, and it did two things; it protected the internet service provider. if you followed certain rules, you would be many a safe harbor. -- be in a safe harbor. so if the user goes on facebook or pinterest and posts infringing content, facebook's not going to be responsible, youtube's not going to be responsible, the internet service provider is not responsible so long as they have set up a procedure for takedown notice. if you see your song, your

photograph, your work published without your permission in an infringing manner on their web site, contact the internet service provider. you say this is an infringement, take it down. and if they take it down, there's like a response period and all this, you know, formalities that are followed. but that shields the internet service provider from liability. you know, if you're, if you are the progresser, if you are, you know -- the blogger, if you are a lawyer standing up giving a talk about copyrights, you've got to worry about the rights management of your things. but the internet service providers have been taken care of. the second thing the digital millennium copyright act did was it made it illegal to tinker with digital rights management, the things like the e-books where, you know, all you do is you're licensing access to that digital media. and the person can protect that media and say that you can't

lend it. if you try and use it in a way that is not authorized, you know, i can take it back from you. and this is something that is, that's -- that was a very fundamental change. because once you buy a book, there's something called the first sale doctrine. once you buy a copy of a work -- not just books, but a work -- i can lend it, i can do anything i want with it. i could set up, you know, the old block buster, i i can release these things. it's my work. so my copy, and i own it. with digital copies under digital rights regimes, all of a sudden my ownership of that copy doesn't give me as much rights. and, you know, honestly i think that will be talked about. i understand why, you know, digital rights management makes

sense. but i don't think it was properly calibrated to say, you know, let us protect the entrepreneur who made all this digitization possible. but, you know, that entrepreneur's working in the public domain. readers, people who want to share information, and, you know, that's important. and i think it may have been, you know, that was one of the things i had in my mind when i said, you know, the entrepreneurs are well represented, authors are well represented, but we really to need to think about that public domain and all of that -- all that that represents. any more questions? oh, wait. >> i have a question. since attachments and e-mail and digital, if you send a document to an agent or a publisher or something, especially one